Illinois Courts and the Law of Miranda Waivers: A Policy Worth Preserving, 30 N. Ill. U. L. Rev. 429 (2010) (original) (raw)
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Miranda waiver elicited by police after the suspect invokes his right to counsel is conclusively invalid and never subject to a totality-of-the-circumstances assessment. 6 Indeed, in Edwards, Justice Powell's concurring opinion expressed concern that the waiver-invalidation rule announced in that case might evolve into a conclusive presumption of invalidity, which he rejected as unjustifiable. 7 The Minnick decision validated this concern. 8 The combined effect of Edwards, Minnick, and Shatzer is clear: if police subject a suspect to custodial interrogation, and that suspect then invokes his Miranda right to counsel, the police may not approach him to reinitiate questioning until fourteen days after his release from custody. 9 The rationale of this prophylactic rule seems relatively clear: by invoking the right to counsel, a suspect indicates his subjective recognition of the inequality in the police-questioning process. 10 Unless and until counsel is present, the police may not exploit the suspect's vulnerability. 11 Accordingly, police contacting a suspect to elicit a subsequent Miranda waiver effectively exploits this expressed vulnerability. 12 Therefore, to level the playing field between a suspect and police, the Court deems any waiver invalid unless the suspect makes it with the assistance of counsel. 13
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Many problems in the interpretation of Miranda v Arizona can be solved by recognizing that Miranda is actually a Fourth Amendment case dressed-up in Fifth Amendment clothes. Miranda does more than protect a suspect from coercion or compulsion; the right to remain silent reflects an autonomy interest better expressed through the 4th Amendment. Fourth Amendment values are reflected in the warnings themselves, the remedy for violations, and even in the Miranda exceptions. And contrary to Chavez v Martinez, the 4th Amendment views a Miranda violation as a constitutional violation that occurs in the interrogation room itself.
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. John's J. Legal Comment., 2005
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Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement
Stanford Law Review, 1998
, an electronic mail distribution list for criminal law professors. David Huth provided valuable assistance in running preliminary regression equations, and Katarzyna Celinska helped collect several data series and provided much other valuable statistical analysis. Research assistants Karen Korevaar and Bret Hayman were also vital to the success of this project. The article was supported by the
Overcoming Miranda: A Content Analysis of the Miranda Portion of Police Interrogations
The authors analyzed the Miranda portion of electronically recorded police interrogations in serious felony cases. The objectives were to determine what percentage of suspects waived their rights, whether the suspects understood their rights before waiving them, and whether the police employed any tactics to induce the suspects to waive their rights. The results of the study revealed that 93% of suspects waived their Miranda rights and talked to the police. Further, it is unlikely that those suspects understood their rights; in fact, the police used a version of the Miranda warning that required a level of reading proficiency that most suspects do not possess. Moreover, the police did very little to ensure that suspects actually understood their rights before waiving them. Finally, the police spoke significantly faster when reading suspects their Miranda rights and, in nearly half of the interrogations, also minimized the importance of the rights. Both of these tactics likely limited the suspect's comprehension of the rights and likely induced them to waive, rather than invoke, their rights. These findings are largely consistent with the limited number of other social science studies that have been published and raise serious doubt about whether suspects' waivers are truly voluntary, knowing, and intelligent, as required by Miranda. Based on these findings, the authors recommend specific reforms to the Miranda warning and to the Miranda process.